UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 96-10978
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHRISTINE T. McDOWELL,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
March 25, 1997
Before WISDOM, KING, and SMITH, Circuit Judges.
WISDOM, Circuit Judge.
In accordance with a written plea agreement, Christine T.
McDowell pleaded guilty to making, uttering, and possessing
counterfeit securities in violation of 18 U.S.C. § 513(a).
McDowell appeals the district court’s decision to depart upwards
from the sentencing guidelines. We affirm.
The defendant was employed as a bookkeeper by David M.
Munson, Incorporated (DMMI) from February 1994 to October 1995.
In the course of performing this job, it fell upon her to pay the
1
bills of the company using DMMI checks. Between May 13, 1994 and
October 15, 1995, McDowell altered over $290,000 of DMMI checks
and deposited the funds into her accounts at Bank United Texas in
Dallas. The entirety of these funds was spent on personal
expenses. According to McDowell, the money enabled her to
purchase clothes for her children, go on vacations, renovate her
home, and repair her automobile.
In the presentencing report, the probation officer
recommended a base offense level of six under § 2F1.1(a) of the
sentencing guidelines, an eight level increase under §
2F1.1(b)(1)(I) because the amount embezzled exceeded $200,000 but
was less than $350,000, a two level increase under § 2F1.1(b)(2)
because the offense involved more than minimal planning, a two
level increase under § 3B1.3 for McDowell’s role in the offense,
no adjustment for obstruction of justice, and a three level
decrease under §§ 3E1.1(a)and (b)(1) for acceptance of
responsibility. Based on these recommendations, the probation
officer calculated a total offense level of 15 and a level I
criminal history category. These figures yield an imprisonment
range of 18 to 24 months. McDowell had no objection to the
presentencing report.
During a sentencing hearing on July 8, 1996, McDowell
informed the court that she had been caught embezzling from a
previous employer only two months before she began working for
DMMI. McDowell stated that the total amount embezzled was
$10,000 and acknowledged that her prior conduct was exactly the
2
same as that of the instant offense. No criminal prosecution
resulted because the defendant’s mother made restitution to the
employer. The court informed the defendant that it was
considering an upward departure because of McDowell’s prior
conduct.
At the third sentencing hearing1 on July 29, 1996, the court
asked McDowell to provide reasons why it should not depart
upwards. Counsel for the defendant argued in favor of leniency,
but did not directly address the issue of an upward departure.
The district court adopted the recommendations of the PSR,
yielding an offense level of 15 and a level I criminal history
category. The court then departed upwards from the guidelines by
increasing McDowell’s offense level to 19 and sentencing her to
37 months imprisonment. McDowell did not object to the district
court’s method of calculating the upward departure, to the extent
of the upward departure, or to the reasons given for the
departure.
Standard of Review
Although failure to preserve an alleged error through
contemporaneous objection generally precludes our consideration
of that issue on appeal, Federal Rule of Criminal Procedure 52(b)
allows us to consider plain errors or defects affecting
substantial rights. Under this rule, a court may correct
1
A second hearing was held on July 22, 1996. At that hearing, counsel for the defendant
informed the court that McDo well was under the influence of drugs (phenobarbital) and was not
competent to proceed. The court remanded the defendant to the custody of the U.S. Marshalls and
set sentencing for July 29, 1996.
3
forfeited errors only when the appellant shows that: (1) there is
an error, (2) the error is clear or obvious, and (3) the error
affects the substantial rights of the defendant.2 If these
factors are established, the decision to correct the forfeited
error is within the court’s sound discretion.3 We may decline to
exercise that discretion unless the error seriously affects the
fairness, integrity, or public reputation of judicial
proceedings.4
Departure Under Which Section?
The government urges that the district court’s upward
departure was appropriate and warranted under § 5K2.0 of the
sentencing guidelines. McDowell, on the other hand, maintains
that the departure from the guidelines was erroneous under the
requirements imposed by this court for departure pursuant to §
4A1.3 of the guidelines. McDowell’s brief makes absolutely no
mention of § 5K2.0.
The roots of this controversy lie in the oral comments of
the district judge at sentencing. As the government
acknowledges, the district court mentioned § 4A1.3 in discussing
the reasons for its departure. The court did not state, however,
that the departure was being made under that section. On the
contrary, the court’s written judgment clearly states that the
2
United States v. Calverly, 37 F.3d 160, 162-64 (5th Cir.) (en banc), cert. denied, 115 S.Ct.
1226 (1995); United States v. Olano, 507 U.S. 725, 731-37 (1993).
3
Olano, 507 U.S. at 735-36.
4
Id.(quoting United States v. Atkinson, 297 U.S. 157 (1936)).
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court departed from the guidelines under § 5K2.0 alone.
We are mindful of the long line of cases holding that in the
event of a conflict between an oral pronouncement of judgment and
a written judgment the oral pronouncement controls.5 We are
similarly cognizant of the rule that an ambiguity between written
and oral pronouncements is to be resolved by examining both
statements to arrive at the court’s intent.6 In the present
case, however, we find neither a conflict nor an ambiguity.
Rather, we observe a definite statement in the written judgement
that the departure was made under § 5K2.0. The record reflects
merely an offhand reference during the sentencing hearing to the
comments accompanying § 4A1.1 regarding justifications for
departures under § 4A1.3.7 Accordingly, we conclude that the
court departed upwards under § 5K2.0.
Justifications for the Departure
We turn now to determine whether the reasons given for the
departure under § 5K2.0 amounted to clear error by the district
court.
The purpose of § 5K2.0 is to allow a district court to
deviate from the sentencing guidelines where “there exists an
5
See e.g. Scott v. United States, 434 F.2d 11 (5th Cir. 1970); Ward v. United States, 508 F.2d
664 (5th Cir. 1975); United States v. Chagra, 669 F.2d 241 (5th Cir.) cert. denied 459 U.S. 846
(1982); United States v. Shaw, 920 F.2d 1225 (5th Cir.) cert. denied 500 U.S. 926 (1991).
6
See e.g. Scott, 434 F.2d at 20; Schurmann v. United States, 658 F.2d 389 (5th Cir. Unit A
1981).
7
As we address below, the district court’s recognition that § 4A1.3 might apply to the
defendant’s conduct does not render a departure under § 5K2.0 erroneous where the court
determines that some aspect of the conduct in question places it outside the range of cases considered
by the Sentencing Commission in drafting § 4A1.3.
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aggravating or mitigating circumstance of a kind, or to a degree,
not adequately taken into consideration by the Sentencing
Commission in formulating the guidelines that should result in a
sentence different from that described.”8 As the Supreme Court
recently noted:
. . .[T]he Commission intends the sentencing courts to
treat each guideline as carving out a ‘heartland,’ a
set of typical cases embodying the conduct that each
guideline describes. When a court finds an atypical
case, one to which a particular guideline
linguistically applies but
where conduct significantly differs from the norm, the court may
consider whether a departure is warranted.9
The statements of the district court at sentencing indicate that
the court identified two factors that placed McDowell’s case
outside the “heartland”.10 The court first addressed the high
probability of recidivism based on McDowell’s prior extortionist
conduct: “I believe that this conduct, which is not taken into
consideration by the guidelines adequately. . .indicates a
greater likelihood of recidivism on your part, inasmuch as it is
precisely the same conduct.” The problem of prior uncharged
8
U.S. SENTENCING GUIDELINES MANUAL § 5K2.0 (1995).
9
Koon v. United States, 116 S.Ct. 2035, 2044 (1996) (internal quotations omitted).
10
The written judgment of the court indicates that the departure was based on the “likelihood
of recidivism based on similar prior offense conduct which did not result in prosecution USSG §
5K2.0". No mention is made of any other reason.
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conduct is squarely addressed by § 4A1.3 of the guidelines.11
That section allows for departure from the guidelines where
“reliable information indicates that the criminal history
category does not adequately reflect the seriousness of the
defendant’s past criminal conduct or the likelihood that the
defendant will commit other crimes. . . . Such information may
include. . .prior similar adult criminal conduct not resulting in
a criminal conviction”. Although this section applies
“linguistically” to McDowell’s case, the district court found
aspects of this case atypical. The court stated:
[Y]ou have uncharged conduct here that is not taken
into consideration in any way. And the thing that
strikes me is it is for exactly the same thing, exactly
the same offense. You embezzled from an employer you
were keeping books for. You were caught on the first
one to give any person of a normal conscience a chance
to be remorseful, certainly that would make an
impression, I think, on most individuals that are
caught, their family gets involved and they bail them
out of trouble. They dodge the bullet, if you will,
not having to go to jail and then it makes such an
impression that two months later you’re back out doing
it again.
The court, in essence, made a finding that particular aspects of
this prior conduct -- it’s proximity to the charged offense and
11
Indeed, this likely explains the courts reference to § 4A1.3 at the sentencing hearing.
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its similarity to the conduct underlying the charged offense --
took it out of the “heartland” of cases considered by the
Sentencing Commission in drafting § 4A3.1. As such, the court
concluded that departure under §5K2.0 was appropriate. This
decision regarding the typicality of cases is better left to the
district court.12 As Koon noted:
. . .[T]he district court must make a refined
assessment of the many facts bearing on the outcome,
informed by it’s vantage point and day-to-day
experience in criminal sentencing. . . . District
courts have an institutional advantage over appellate
courts in making these sorts of determinations,
especially as they see so many more guidelines cases
that appellate courts do.13
We find no clear error in the district court’s conclusion that
the likelihood of recidivism, in the light of McDowell’s prior
conduct, warranted an upward departure from the guidelines.
Nonetheless, we find troubling the district court’s second
primary reason for the departure. At the third sentencing
hearing, the court pressed McDowell to state specifically what
had become of the nearly $300,000 in embezzled funds. The
defendant explained that she had nothing to show for it -- that
the money “was just spent”. The court clearly was suspicious of
12
Section 5K2.0 specifically states that “the court may depart from the guidelines, even though
the reason for the departure is taken into consideration in the guidelines . . . if the court determines
that, in light of unusual circumstances, the guideline level attached to that factor is inadequate.
13
Koon, 116 S.Ct. at 2046-2047.
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this response.14 The judge went on to explain his
dissatisfaction with the available sentencing range, absent
departure, when viewed in the light of the large amount
embezzled. The court stated:
. . .Here’s what just shocks my conscience. The
offense level in this matter by the guidelines is 15
and the criminal history category is I, as I recall. .
. . That provides for 18 to 24 months. If I gave you
24 months -- you stole $292,000 that I want to doubt
real serious you’re going to have the wherewithal to
pay back. So in essence what you will accomplish, if I
give you two years, is . . . you’re in essence
basically earning $145,000 a year. . . . So what Im
saying is that giving you two years, I really question
how much punishment that is, inasmuch as you have had
the benefit, the use and enjoyment, as well as your
family, of $292,000 of Mr. Munson and his family’s
money. So I’m going to sentence you at an offense
level of 19, departing upward four levels because of
the similar uncharged offense . . . and I’m going to
sentence you to 37 months. So now you’re making 70 or
14
The court noted that there is
. . .a quarter of a million you can’t account for or won’t
account for. I have no confidence that you don’t have the money
squirreled away somewhere. . . . There’s no one in this room who in
an 18-month period could spend a quarter of a million dollars. You
know, maybe if we had Ross Perot in here or something he could drop
a quarter of a million dollars and not know where it went. And so
you’re telling me ‘I have no idea what I did with that $250,000, but
I spent this other 50 on these various things’, I don’t believe it.
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80 thousand a year while you sit in jail.
This reasoning cannot be upheld. Section 5K2.0 was intended to
allow departure based on a character or circumstance that places
a case outside the “heartland” of cases considered by the
Sentencing Commission. However, as stated in the commentary to
section 5K2.0, “In the absence of [such a character or
circumstance], a sentence outside the guideline range is not
authorized. For example, dissatisfaction with the available
sentencing range or preference for a different sentence than that
authorized by the guidelines is not an appropriate basis for a
sentence outside the applicable guideline range.”15 We cannot
describe the above reasoning of the district court as anything
but dissatisfaction with the available sentencing range.
Consequently, the court’s reasoning is erroneous.
Despite the court’s error in departing based on its own
dissatisfaction with the available sentence, remand is not
required to correct this error. Remand is required unless we
find that the district court would have imposed the same sentence
absent reliance on the improper factor.16 Here, the district
court had the authority to make the departure based only upon the
likelihood of recidivism. Indeed, the court’s written judgment
reflects this very conclusion. As such, although the court
15
U.S. SENTENCING GUIDELINES MANUAL § 5K2.0 commentary at 311 (1995) (emphasis
added).
16
Koon, 116 S.Ct. at 2053-54. See also United States v. Stout, 32 F.3d 901 (5th Cir. 1994)
(holding that where a sentencing judge offers both acceptable and unacceptable reasons for a
departure, any error is harmless).
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erred, we find the error to be harmless.
Extent of the Departure
The appellant next asserts that the extent of the departure
constituted plain error. An upward departure should be affirmed
if the district court provides acceptable reasons for the
departure and the extent of the departure was reasonable.17 This
circuit does not, however, require a district court to state with
particularity the reasons for the extent of a departure.18
Viewing the record as a whole, we cannot say that the departure
in this case was unreasonable. Accordingly, we find no
reversible error in the district court’s upward departure from
the sentencing guidelines.
AFFIRMED.
17
Lee, 989 F.2d at 182.
18
United States v. Huddleston, 929 F.2d 1030, 1031 (5th Cir. 1991).
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